National Water Resources Strategy: deliberations

Water and Sanitation

21 November 2012
Chairperson: Mr J De Lange (ANC)
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Meeting Summary

The Committee and the Department of Water Affairs (DWA) discussed the key issues raised at the recent public hearings on the National Water Resource Strategy 2. The key issues highlighted were implementation plan, functionality of infrastructure, sanitation, information systems and database, equity and pro-poor strategies. Other key matters were the alignment of water services, subsidisation and incentivisation, the Water Tribunal, licensing, water allocation priorities, institutions and community/civil society participation. The Committee and DWA also discussed regulation and the legal format of the Strategy, a national water resource development framework, storm water and water resource classification. Acid Mine Drainage, fracking and the alignment of other development strategies, an investment framework, waste discharge charge system and centralised planning on infrastructure and the funding model were also discussed.

The Chairperson noted that he found it mind-boggling that some mines were allowed to operate without licences in a country with a Constitution which was strong on the rule of law. He wanted a proper report drafted by the Department on each mine operating without water licences and the steps the Department was taking to rectify the situation. The requested report should be submitted not later than mid-January 2013.

Meeting report

The Chairperson wanted some discussion on the public hearings and said that because of time constraints, they would not be able to give the matter as much justice as he wanted to. He was very pleased with the documents compiled by the Department on the hearings and said it bode very well and judging by these, a lot was achieved.

The Chairperson suggested the input by the Department was not taken to save time and instead they would focus on the big issues raised in the public submissions. He apologised to the Department that he could not give them the adequate time needed. He noted the Department aimed to adopt the NWRS2 by July 2013 and said more discussion could be held next year. He wanted the Committee to identify a few big issues that needed to be dealt with.

Implementation Plan
The Chair suggested the first was on the concept of a strategy and what that actually meant. The problem was that some issues were left out of the strategy, such as the Water Tribunal, as they were thought to belong in policy but they were important to have in the strategy. The Department needed to be pragmatic about this.

The Members agreed with this.

The Chairperson noted the Department sometimes made a distinction between an action plan and implementation strategy in the NWRS2. He questioned the difference between the NWRS2 as a strategy itself and an implementation plan.

Mr Fred Van Zyl, DWA Director:
Water Services - Planning and Information Systems (WSPEI), said there was a need for a strategy to guide the next 20 years according to the Act. The failure of the NWRS1 was implementation so an implementation/action plan was needed to guide the Department’s actions along with a governance structure. The strategy was not just on paper but was a real live action plan. Both were needed to avoid failure. Water was a multi-dimensional issue with different layers or levels that needed to be addressed. A strategy was needed to achieve all the desired outcomes. It was a complicated architecture.

The Chair asked if, by July 2013, the Department would have both a strategy and an implementation plan.

Mr Van Zyl said that both were needed.

Mr Helgard Muller, DWA Acting Deputy Director General: Policy and Regulation, said it was important that the strategy was reflected and embedded in the Department’s annual performance plan under implementation.

The Chairperson said it should be a high-level document, with not too much detail, to centralise water, what that meant and the implications. This was a strong recommendation.

Mr Van Zyl said for each of the core strategies, in the NWRS2, there was a detailed action plan that would form part of the Strategy.

The Chairperson stressed that he was pragmatic about this and wanted to see two clear phases – strategies or principles that guided the Department and implementation or practical things that needed to be done.

The Water Tribunal
The Chairperson highlighted another key area was around the Water Tribunal. The option was to either revise what there currently was or to look at alternatives such as looking at the Competition Tribunal with simple structures. There was also the option of administrative fines.

Mr G Morgan (DA) thought it was justified to include a section on the Water Tribunal in the NWRS2. He thought the problems of the Tribunal should be articulated, the matter at hand and new thinking, if there was, should also be included. It was worthwhile to explain what the Water Tribunal was there for.

The Chairperson asked what the biggest problems of the Water Tribunal were, in a nutshell. 

Mr Maxwell Sirenya, DWA Director-General, said the terms of some positions expired last year and the composition of the current team did not reflect what was required. The chair had moved on to be a judge before his term expired and this created disfunctionality because of the current composition of the team.

The Chairperson said this was easy to solve but questioned the structural problems of the Water Tribunal.

Mr Sirenya highlighted the dysfunctionality and the problems with the composition while the appeals accumulated in the process. There was a legal process challenging the status quo but a team had been put in place by the Minister in the interim.

The Chairperson asked if the composition would be changed while the structure was kept the same.

Mr Sirenya said the detail would be known at a later stage by the legal team. He noted the backlogs with appointment and composition.

The Chairperson asked if the Department chose to go the route of the Competition Tribunal, what changes would occur in the current situation.

An official from the Department added there was a backlog.

Mr Morgan questioned why the Department did not approach the Committee with a piece of amendment legislation on this particular issue because he felt it should not be held up by a broader policy review. He felt it was a matter of urgency and credibility.

Mr Sirenya said he was not able to say why it had not reached the Committee. All he knew, in the absence of the State Legal Advisors, was that the approach of general amendments was mentioned as a process. Where the delay was, he did not know. He would undertake to get more facts on this.

The Chairperson said this should be given more thought especially in the appointment made by the Minister as credibility was at stake. The court case challenge made this matter even more urgent. It was not rocket science but an issue of creating a legitimate institution which was not beholden to the executive authority that appointed it and processed water disputes in an effective manner. If given one week, he could work out a perfect system, in theory at least. A policy decision needed to be made and the matter sorted out. The Committee felt this issue of the Water Tribunal needed to be dealt with in the NWRS2 and given the pending court case, the Department needed to move quickly to avoid looking bad.

Equity and Pro-Poor Strategies
The Chairperson asked the Department what other big issues came to the fore.

Mr Muller noted equity, as was picked up in the concluding remarks of the submission by the AgriSA chairperson. A number of sessions had been flagged with them and he noted a substantial amount of work was needed on this.

The Chairperson said pro-poor strategies needed to be looked, such as outlining if poor communities would add to the payment for new dams. The Department needed to look at specific pro-poor strategies. He raised the example of the Jozini Dam where the communities living alongside this dam did not receive the water from it. Reallocation could be the biggest pro-poor strategy.

Mr Morgan agreed with the Chairperson. He was particularly interested in the licences for historically-disadvantaged individuals. He noted the problems with goals of the Department being missed and this should be articulated with the required action steps. This was also linked to the land issue and it should be stated if it was linked to other departments. This should be beefed up.

Ms C Zikalala (IFP) was disappointed with Jozini Dam. She thought it was time the Department reported to the Committee on the various dam projects. She was forced to issue a statement in Parliament to the Minister on the Jozini Dam.

The Chairperson said other issues like fog harvesting could be used as a pro-poor strategy if it was viable or cost-effective. The Department needed to be clear on their pro-poor strategies.

Mr J Skosana (ANC) asked if the process of fog harvesting would be expanded and questioned the expansion of the programmes of the Department.

Ms Manganye noted that when a programme was said to be “in progress” it was actually sometimes still in the planning stage. She felt there should be pilot projects before programmes were expanded to see if they would work in other places.

Functionality of Infrastructure
The Chairperson raised a concern about the functionality of infrastructure as was highlighted in the briefing on the Millennium Development Goals (MDGs). He asked about the strategy and policies to make sure that the funding on functionality, or maintenance, of infrastructure was kept in mind. Functionality could be added to the MDGs.

Mr Sirenya said there was a view that operations and maintenance requirements should be funded by users at all levels. That capital could be subsidised. It was important to look after what there was before something new was added. It was tied to capacity and planning.

The Chairperson felt there was not a clear strategy on functionality of infrastructure. He wanted the document to deal substantially with this. If the Department said the users or consumer paid for functionality, it should be stated in the policy and the implications of it discussed. It was not part of the MDGs. There were no indicators for it and there were not proper strategies in place to address these matters. If the Department said municipalities were responsible, there should be plans in place to oblige them. Currently these were assumptions by the Department. The meaning of functionality needed to be unpacked fully. It was fine for industry and big metros but it was a disaster for the rest of the country where municipalities were falling apart. In order for budget and funding, this issue needed to be clearly spelled out in the document.

Mr Skosana wanted a report from the Department on the Jozini Dam. He also questioned the powers delegated to the municipalities and how this was integrated with national powers, for service delivery on the ground.

The Chairperson said this formed part of the functionality debate. Where there were no answers, the Department needed to spell these problems out. He emphasised that he wanted a very clear discussion on functionality in the document. It could not be left as it was and needed to be dealt with fully.

The next issue raised by the Chairperson was sanitation. The Department needed to bite the bullet on this and ask the relevant questions in the document as the lead department on water. The Department was responsible to highlight the issues in the Strategy and show what the weaknesses were. It was clear something needed to be done and unpacked. The Department needed to raise what they wanted answers to.

Mr Sirenya said he would take the first point here and recognized that it was a multi-dimensional approach. Yesterday he was in the National Assembly in the Appropriations meeting, and the question was asked of the Department of Human Settlements (DHS), especially under-spending in rural development, specifically sanitation. This was not the first time sanitation underspending was raised and sanitation belonged to DHS, but the issue was currently locked to a Presidential decision. The Department of Water Affairs would do its part because it was familiar with that area of work. He was meeting with the National Treasury Director General later that day because it had been a discussion at departmental level and other public structures had begun to show interest. The Department could provide in the context of water, but where it delivered to what the Chairperson was saying, it would have to be found with more than just the Department- other people need to be involved.

The Chairperson said the issue needed to be raised squarely by the Department in the Strategy. It was the Department’s duty to inform the President of the implications or consequences of sanitation on the water sector while it was his prerogative to do something about it or not.  He emphasised it was the responsibility of the Department to make the issues of sanitation known.

Mr Skosana agreed with the Chairperson. He felt a presentation was needed early next year on sanitation.

The Chairperson said he was aiming for this to be discussed in a workshop on cross-cutting issues.

The next issue raised was a coherent strategy, or sub-strategy, on subsidisation or incentives. The Chairperson said it needed to be thought throught carefully and could be linked to pro-poor strategies. Such a framework could open up new opportunities where the private sector and individuals could be involved. Technology which could help the poor or lessen the burden on the Department were important to look into.

He asked what other important areas where picked out by the Department.

Alignment of Water Services
Mr Van Zyl noted the alignment of water services and the NWRS.

The Chairperson said the Committee would have to take guidance from the Department on this issue and a clear link needed to be formed with the guiding principles. 

Information System and Database
Another topic raised by the Chairperson was the information system around water issues. He understood the sensitivities about this but noted the importance of empowering society through information in a democracy. He suggested a proper study of the Promotion of Access to Information Act (PAIA) by the Department. He thought the Department needed to create automatic mechanisms where civil society could access the documents they wanted. The Department needed to streamline or fine-tune their process in accordance with PAIA. The Department would earn massive respect if these processes were in order. He wanted the Department to commit itself, in terms of information systems and the NWRS2, to PAIA.

This was linked to another issue raised about a national database. He asked if there was a full or complete database or if it was lacking in some parts.

Mr Muller said the Department was working on integrating all the databases and to make them available to the public through the Blue and Green Drop Reports. This was a gap that was being worked on.

The Chairperson raised the distinction between the database and the information system. He thought there should be a single integrated verifiable national database with all the information relating to water sector issues. This was huge and the protocols for verification needed to be put in place first.

He turned to the issue of licensing saying that it, along with infrastructure, were the pillars of the Department as everything flowed from there.  He asked why the Department was not going ahead with compulsory licensing and what the main problems were. For this to be dealt with, the Department needed to be engaged in discussion with the key players. Licensing and allocation needed to be approached firmly by the Department and should be put in the centre of all operations according to principles of equity. The Department needed to seriously sit down with the vested interests in this matter. The chapter on allocation needed to be changed. The issue of licensing and allocation would define the legacy of the Department. He was concerned that there was no serious movement on this since the Committee met with the Department in Pretoria two years ago. He saw drafts on amending this law or restructuring licensing. 

Mr S Huang (ANC) was totally disappointed with the Department’s inaction on water licensing especially in the mining sector.

The Chairperson said all the proposals needed to be looked at.

Mr Sirenya noted that he was not around two years ago but now took full responsibility. The Department had the best minds and he said they heard the concerns of the Committee.

The Chairperson felt the chapter should be made stronger by looking at all these issues.

A Department official indicated that for most of the issues related to equity and the targets set, change needed to occur in the National Water Act (NWA). Amendment of this Act was stopped due to a change in management but had now started again and the process needed to wait for a policy review to lead to amendment of the NWA. Water trading needed to come into the NWRS as it had an impact on equity.

The Chairperson said the Department needed to come out strongly on licensing and water allocation which was linked to equity and the relevant chapters should be changed.

He wanted a proper report drafted by the Department on each mine operating without water licences and the steps the Department was taking to rectify the situation. The information on these mines was provided by Ms Mariette Liefferink from the Federation for Environmental Sustainability (FES). He found this state of affairs mind-boggling and could not understand how mines were allowed to operate without licences in a country with a Constitution which was strong on the rule of law. He asked if mines had ever been closed as a result. The requested report should be submitted not later than mid-January 2013. Some of the criteria for giving water licences as stated by Ms Liefferink were of value and could be included in the Department’s chapter on licensing. He emphasised the Department’s report on the mines needed to be on his desk by the middle of January.

Mr Morgan said an understanding of the Department’s enforcement protocols and hierarchy needed to be in the report also and a discussion on the actual criteria of enforcement to allow for a rigorous review of the report.

The Chairperson said this could be added to the report.

Mr Muller said he had brought a report for Ms Zikalala on a certain dam.

Water Allocation Priorities, Institutions and Community/Civil Society Involvement
Mr Muller highlighted water allocation priorities and strategic issues, institutions and community/civil society involvement.

The Chairperson said the board of directors was not the right way to go about it. He wanted the Department to flesh out regulations and functions of the catchment forums especially in terms of budget for people to attend meetings if they were far away.  The infrastructure agencies needed to be looked at in terms of deciding on implementation versus policy for the Trans-Caledon Tunnel Authority (TCTA) and the Catchment Management Areas (CMAs). The Department needed to decide whether the boards of the agencies would stay or go. On the water allocations, he noted there were no problems to come out of this area.

Mr Muller said it was flagged because he personally felt it was an issue that needed to be raised with the Committee. 

Regulation and Legal Format
Mr Muller highlighted regulation, especially economic regulation and the legal status of the NWRS. 

Mr Van Zyl asked if there were legal implications for how the Strategy should be formatted. 

The Chairperson said it was a difficult question as legally binding documents were known in the format of an Act of Parliament or a Directive etc. This was difficult when dealing with a Strategy which included policy and problem areas. It was important to give the Strategy status and effect for Department officials to implement it. He felt this should be flagged for further thought.

Mr Morgan said it was a complex issue and said some thinking and proposals were needed over the recess period from the Department’s lawyers. He could not understand how the Strategy could be a legal document when it did not itself describe offences and penalties for deviation. There should be some process for the Department officials to express in a symbolic manner that they had read and understood the Strategy. He got a sense the NWRS1 was not owned by the staff of the Department at all levels and this was a serious problem that needed to be avoided. The Department needed to become more inward looking to inculcate the culture and behaviours suggested in the NWRS2.

The Chairperson also said it was a complex matter given that other departments, like mining, also needed to be bound. The issue was how to deal with it.

Mr Van Zyl said there were three legal issues – the development of a strategy, it needed to have certain content, and the legal status if it did not have that content. He asked for advice for a situation where people could be taken to court for not performing when the Act said this must be done in terms of the Strategy.

The Chairperson said the easy answer was that if someone was not doing something that they were obliged to, they were not complying with the law. This still then needed to go to the courts. The drafters of the Act wanted the Strategy to be binding on how people performed their actions. He thought the Department needed to explain this at the beginning of the NWRS. He felt the Strategy was unique in that other departments did not have such strategies and it was a new concept.

Mr Morgan said a judge would have a very hard time interpreting what was in the Strategy. He thought what could happen is to have a section on compliance and regulations which was allowed for in the NWA. The other problem he had was with the original concept – although he understood what the drafters were trying to do.

Mr Sirenya spoke about a review of the NWA and explained the NWRS as a legal instrument for the Department to discharge their mandate. The issue was with the legal interpretation.

The Chairperson said, at the end of the day, the Department needed to give effect to the legal words in the legislation and the way the Strategy was worded, this could not be done. He felt the only way to deal with this was to have a section or paragraph at the beginning of the Strategy. It would explain what the NWA said and that civil servants needed to comply with it but compliance was in the regulations of the NWA – in order to give some context.

National Water Resource Development Framework
The Chairperson said what was lacking in the Strategy was a national water resource development framework in order to pull all the research and institutions together. He suggested the Department look at the White Paper on Climate Change. This needed to be included.

Storm Water
Another issue raised by the Chairperson was on the lack of policy on storm-water. He asked what the Strategy said on this. He noted the huge amounts of storm water lost in a place like Cape Town.

Mr Van Zyl said storm water was part of disaster management which fell under roads in municipalities.

The Chairperson said this needed to be looked at fully. It formed part of the urban management system given in the submission by the University of Cape Town (UCT).

Water Resource Classification
The Chairperson questioned water resource classification. 

Ms Ndileka Mohapi, DWA Chief Director: Water Ecosystems, said the Department was classifying the major water resources (mostly rivers, wetlands) and grading them according to the health of the particular river and what the Department needed to do to improve the ecosystems around these rivers.

The Chairperson wanted a copy of this document. It needed to be covered properly in the NWRS if it was not.

Ms Mohapi said it was under Enabling Strategies under the Protection of Resources but the Department may have to go back and re-look at this.

Acid Mine Drainage
The Chairperson asked what was said about Acid Mine Drainage (AMD) in the NWRS. 

Mr Sirenya said it fell broadly under Regulation because the manifestation of AMD was part of water, especially ground water, quality deterioration and contamination. It was a particular problem of mines in disuse.

The Chairperson said it seemed a whole sub-strategy on AMD was needed. The policies of the Department needed to be clear on AMD so as to be seen as a resource and not a threat. The Department and the Committee needed to create sub-strategies around AMD.

Mr Sirenya said he was just explaining the source of AMD. He asked once it was there, what did one do? Part of it was preventing it from happening. The mining houses were saying they could actually treat that.

Mr Van Zyl said the Department proposed, in the architecture of the NWRS, that there was a dedicated sub-strategy on water quality management to address historic and future issues. He raised the importance of studies on this matter especially cross-cutting measures.  

Fracking and Alignment with other Developmental Strategies
The Chairperson asked about fracking.

Mr Muller said there was a task team in the Department to deal with their role as a regulator of the water aspects of fracking.

The Chairperson said this was important as a developing area of policy. The Department should not run away from this but outline DWA’s role.   

Mr Muller said there were more comprehensive under-pinning strategies in the NWRS to deal with matters such as ground water.

The Chairperson said it should be stated the NWRS was under-pinned by and aligned with other developmental strategies. These linkages needed to be created. 

He wanted the NWRS to be clear on which areas did not have access to safe water and to identify and put strategies in place. 

Investment Framework
The Chairperson asked about the investment framework.

Mr Van Zyl said this was under Core Strategy Ten and there was support in the public submissions on this and a financing model.

Waste Discharge Charge System
The Chairperson questioned the waste discharge charge system. 

A Department official said it was developed as an enhancement to the polluter pays programme. The Department was trying to come up with incentive charges and mitigation charges for waste discharge. It was not developed in depth in the NWRS but it was going to be developed as regulatory tool.

The Chairperson said this needed to be given the right space.

Centralised Planning On Infrastructure and the Funding Model
The Chairperson questioned the centralised planning on infrastructure and the funding model. He had raised this point numerous times and asked why it was not being addressed by the Department.

Mr Muller said it was happening in two areas –the water infrastructure investment framework and the equitable share.

The Chairperson said this was the tool but not the policy change.

Mr Muller said the policy change was part of another process with a specialised team looking at the funding model, tariffs and the economic regulator. It was underway but there was a gap that needed to be mentioned.

The Chairperson stressed if the Department agreed it must be put in writing. The implications of the funding model on municipalities needed to be spelt out and should say if this funding model needed to be changed. The second issue was with centralised planning (with decentralised implementation) with funding for the entire thing.  He asked when this was going to be changed and seen as part of the plans of the Department.

Mr Sirenya said power was vested in different areas and different spheres and the equitable share was part of an unconditional grant.

The Chairperson said the problem was with Treasury and how money was handed out. He expected the Department to identify this problem in the NWRS and suggest solutions. He wanted the Department to draft a section on this problem and the detail involved in order for change to occur especially in funding.

Mr Van Zyl agreed and Department would make proposals with Treasury on the investment framework and the equitable share.

Departing Comments
The Chairperson said the Department had done good work and there was some good work in the NWRS2 but it was weak. The Department needed to move in the next six months. He felt the Department was in a good place and was on top of issues like the public hearings process. He made it clear the Department needed to have special sessions with certain groupings (like the National Planning Commission and SALGA) to raise issues, like the funding model, and if they did not agree, at least they would know what was happening. Towards the beginning of next year the Department needed to report to the Committee on how far they were with the process and show the Committee the redrafting of the NWRS2 before it was taken to Cabinet – this was a recommendation of the Committee to strengthen the Department. He congratulated the Department on the good work.

Mr Sirenya, on behalf of the Department, thanked the Committee for keeping them on their toes. He apologised for officials not pitching for public submissions on 6 November 2012.

The Chairperson said the Department did not have to send a big delegation but rather two or three who always attended such hearings for consistency. He accepted the apology of the Department.

The Chairperson said he was optimistic about the good work of the Department

Mr Morgan thanked the Department on their engagement with the Committee during the year. He saw the Department understood what was expected of them and saw the good work coming out. It was great to have a Director General who was almost always in attendance and thanked the other senior officials always present for the good standard of the presentations. He thanked the Committee Members who had grown in capacity over the year. He thanked the Chairperson for setting the tone of the Committee to allow Members to run with their lines of questioning and make recommendations. He thanked the Chairperson for the guidance given. He thanked Ms M Wenger (DA) for her support, other Members, the support staff of the Committee for their documents. He also thanked PMG for recording all the meetings. He wished all a happy holiday season.

Ms Manganye highlighted the need to understand other languages to make things easier. On behalf of the ANC, she thanked the Department, the opposition and said the good work needed to be kept up. She thought this was the most inclusive Committee in Parliament where all the Members worked together. She thanked the Chairperson for his indulgence and for guiding the Committee on issues of the Constitution. She made note of those going to the ANC conference in Mangaung.

The Chairperson thanked the Department of Water Affairs, as well as the Department of Environmental Affairs (DEA) in their absence. His time on the Committee had been fulfilling especially in the growth seen in the Departments over the past two years especially because of the very able and thoughtful Director General in his respect towards Parliament. The work needed to be kept up. He thanked the Committee’s content advisor, Ms Shereen Dawood, for her huge passion and said he was always appreciative of her work. He thanked the Committee researcher and his contributions to the Committee and noted he was appreciative of his excellent work. The work shown by the water specialist for the Committee was good and urged him to keep the good work up. He thanked the hard work and diligence of the PMG reporter and noted it was good to have someone recording all the meetings. He thanked the Committee Secretary, Ms Tyhileka Madubela, for putting up with all the tantrums of the Chairperson and bearing the brunt of many fights. He thanked her for her diligence, incredible work ethic and professionalism. He thanked the Committee Members for their harmony, maturity and intellectual honesty transcending party political boundaries. The last two years were the best time he had had in Parliament because of the Members of the Committee. He appreciated the work of individual Members and apologised for sometimes moving too fast and issues of language. He told everyone to watch their backs at Mangaung and hoped those vying for higher positions were successful and also in the case of the Democratic Alliance conference. He felt these conferences brought out the worst in people. He urged those travelling during the holidays to be safe. He noted there was no programme for next year yet but it would start off with the workshop. The Committee was looking to go on a study tour to China in April or September 2013 and said the Director General could pay for officials to accompany the Committee on this tour as well as from DEA in terms of climate change especially.

The meeting was adjourned.


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